30th Amendment to Constitution – Text

A lunchtime protest by dislocated workers was ...

The Bill amending the Constitution to allow Ireland to ratify the Fiscal Compact is now available on the Oireachtas Website (PDF).

The bill proposes inserting a new sub-section 10 to Article 29 which deals with foreign affairs. The new section will read as follows:

10° The State may ratify the Treaty on Stability, Coordination andGovernance in the Economic and Monetary Union done at Brussels on the 2nd day of March 2012. No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of the State under that Treaty or prevents laws enacted, acts done or measures adopted by bodies competent under that Treaty from having the force of law in the State.

The Dáil will debate the amendment starting on Wednesday as it rushes to pass the amendment ahead of the referendum on May 31st. Once the Amendment has cleared all stages in the Dáil and Seanad a Referendum Commission will then be established.

Text of the current Constitution (PDF). Correct as of March 2010, not including the 29th Amendment approved by Referendum last October.

A Weekend is a long time in Politics

Department of the Taoiseach in Merrion Square,...
Image via Wikipedia

That was some weekend wasn’t it? I have never in my life experienced a weekend in which so much has happened politically. We entered the weekend with Brian Cowen as leader of Fianna Fáil and we finished it with him as a caretaker Taoiseach.

His resignation as leader of Fianna Fáil was not that surprising considering the amount or pressure on him from all parts of the Fianna Fáil part and the failure of stalwarts like Eamonn O’Cuiv to back him. He knew his time was up. He had to go, but hes staying as Taoiseach.

We now face the possibility this week that the leader of Fianna Fail might not be in Government going into the election. That is if Michéal Martin wins the vote on Wednesday, which he is expected to do. But I wouldn’t trust those Fianna Fáilers and the result could surprise us.

After all the drama on Saturday, the Greens went into crisis mode. They held a meeting on Sunday and at press conference yesterday, they announced they had “lost patience” with their Government partners and were pulling out of Government. This means we are left with 7 ministers. The minimum number allowed by the constitution.

The Cabinet now looks like this:

  • Taoiseach and Foreign Affairs: Brian Cowen
  • Finance: Brian Lenihan
  • Tánasite, Education, Skill, Health and Children: Mary Coughlan
  • Community, Equality,  Gaeltacht Affairs, Transport, Environment, Heritage and Local Government: Pat Carey
  • Agriculture, Fisheries, Food, Justice and Law Reform: Brendan Smith
  • Tourism, Culture, Sport, Enterprise, Trade and Innovation: Mary Hanafin
  • Social Protection, Defence, Communication and Natural Resources: Eamonn O’Cuiv

The election date is obviously going to change with this and a date that seems to be appearing is Friday 25th of February. That is of course if they can pass the Finance Bill and stave off the vote of confidence.

Tonight’s meeting on the Finance Bill between Fianna Fail, Fine Gael, Labour and the Greens will be an interesting one. It will be the one that decides whether or not we will have a Finance Bill going into the election. Its going to be an interesting week.

Electoral Reform and the List System

There seems to be a bit of talk about Electoral Reform lately going around and the possibility of it being in the new FG policy. As someone who would like to see the Seanad replaced with an elected body, by a PR List, possibly national or regional, Jason O’Mahony, who I normally agree with, raises a better idea for the using the List System within the Dáil elections.

The only part I disagree with him is the idea of quotas for Men and Women on the list, and if it is an open list, the idea of listing them altrnatively is kind of a waste.

But what would we call this mixed system of PRSTV and PR List? A mix of First Past the Post and List ends up being called Mixed member proportional representation system like they have in Germany, what would you call it?

In the end I dont think adding list TD’s will make a huge difference to the political system in this country, whether it be for 15 or 30. At the upper end of the scale, it would have more of an impact on coalition building. But would it not be better to use this system for a seperately elected upper house, that would have actual powers, more akin to the House of Lords in the UK?

That would be my preffered system, and if we get that super-constitutional referendum that Fine Gael is promising, there will be lots of hard choices for us all to make.

UPDATE: I wrote this before seeing this story on the Front Page of the Irish Times.

LGBT Noise Protest – Register Your Protest


LGBT Noise are holding a protest next Saturday December 6th in Dublin at 13:45pm. The time is a strange one to have a protest isn’t it, why not 13:30 or 14:00 makes it easier to remember. Anyway the protest is from the Dáil to the Civil Registry Office on Grand Canal Street “to stand up for the Civil Institution of Marriage”. This is according to an email I got from their info list.

In the email about the protest LGBT Noise complain about “threats by Cardinal Seán Brady of legal challenges to the recognition of gay and lesbian couples”

This may be news to LGBT Noise but the church, as a legal entity, have the right to bring legal challenges against actions they might see as impinging on the Constitution. Gay activists always amaze me, they are the first to use the courts if they think it will further there cause (KAL Case) but if they see at something that might hold back there cause, its just not cricket.

Secondly they complain about “ideological attacks on gay families on RTE One and RTE Radio One” if they think that shouldn’t they be writing to RTÉ and the papers? A protest on Civil Marriage is not going to change anything about who RTÉ gets on its shows.

They go on to say “gay and lesbian people have a civil right to have their relationships, and their families, protected by the State”. While this is correct to a point the Irish Constitution the supreme law of the land states, in Article 41.1

1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

Also Article 41.3.1 states:

The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

This shows the constitutions places limits on supposed Civil Rights.

A lot of Civil Rights being claimed by LGBT Noise such as:

Civil Marriage is a Civil Right.
Protection for parents is a Civil Right.
Protection for children is a Civil Right.

have not been validated by the Irish Constitution or by the courts. They are presuming that these rights exist. In fact we are waiting for a Children’s Rights Referendum so I am surprised that they have mentioned Protection for Children which is a bit off track in that sense.

In relation to the threat by the church over legal action they say:

It’s time that our government and the religious lobby recognised that church and state should remain separate. The right of gay and lesbian couples to get married in a civil registry office does not in any way interfere with the free practice of religion.

Who said it would interfere with “the free practice of religion”? Not a single person I know would use the argument of free practice of religion against the campaign for Civil Marriage as it wouldn’t have a leg to stand on. I think the fact the Church is threatening to take the State to court shows that there is separation of Church and State in this country, because if it were not the case, the church would not have to take the case against the state.

In the entire email I find myself agreeing with only one part of it and that is one of the lines in the concluding paragraph

pretending that we must only see the arguments in terms of conflict between gay and religious people ignores both the countless gay people of faith, and others in the faith community who support equality for all

Yes, there are many religous folk out there in support of Gay Marriage and Civil Unions and I have been lucky to meet some of them.

Anyway best of luck to those attending the protest, but personally I don’t see the point.

What Ireland Needs: An Abortion Act

Okay so the title of this post is a bit of a headline grabber but bear with me as this is not a pro-choice or pro-life rant but a discussion on the legal situation of abortion in Ireland. I recently read a book where this is brought up and hence this post. The book in question is “Moments that Changed Us” by Colum Kenny (Goodreads.com link)

Article 40.3.3 of Bunreacht Na hÉireann (Constitution of Ireland) states:

3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

According to the case Attorney General vs X [1992] IESC 1 Chief Justice Finlay states

I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40,s.3, sub-s. 3 (Quoted above) of the Constitution.

Of course this means that the Oireachtas should set out legislation how this procedure should be allowed take place in Ireland instead of forcing the mother to travel abroad for a termination which can legally under the constitution take place in Ireland. Unfortunately under the Offences against the Person Act, 1861 there is a penalty of life imprisonment for any person who carries out an abortion even if this abortion is allowed by the constitution. As you can see there is a case for the changing of the 1861 act least alone that is does need updating.

While I am not an expert in law or medicine I do not like to see ambiguities in the law, especially when it comes to life. The sooner our politicians wake up and amend the Offences against the Person Act, 1861 or try again to amend the constitution we are stuck with this ambiguity of the law.

So what will we be voting on come June?

Yesterday the Dáil started debating the Twenty-eighth Amendment of the Constitution Bill 2008, but what will this actually do in terms of our constitution I hope to show changes on an articles by article basis.

The Bill concerns Article 29 of the Constitution. It starts off by deleting Article 29.4.9 which states

The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 1.2 of the Treaty referred to in subsection 7° of this section where that common defence would include the State.

It also deletes Article 29.4.11

11° The State may ratify the Agreement relating to Community Patents drawn up between the Member States of the Communities and done at Luxembourg on the 15th day of December, 1989.

These take out artilcles that refer to decisons as the Lisbon Treaty amends the previous treaty so rewording is needed.

Article 29.4.10 becomes Article 29.4.9.

New Article 29.4.10

10° The State may ratify the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on the 13th day of December 2007, and may be a member of the European Union established by virtue of that Treaty.

This article basicly allows the state to ratify the Lisbon Treaty.

New Article 29.4.11

11° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the
obligations of membership of the European Union referred to in subsection 10° of this section, or prevents laws enacted, acts done or measures adopted by the said European Union or by institutions thereof, or by bodies competent under the treaties referred to in this section, from having the force of law in the State.

This article gives constitutional backing to the Supremcy of EU law which has been laid down by the European Court of Justice in the case Flaminio Costa v. ENEL [1964]. This is what we signed up to in 1973, so is no surprise that it is being given constitutional backing.

New Article 29.4.12

12° The State may exercise the options or discretions provided by or under Articles 1.22, 2.64, 2.65, 2.66, 2.67, 2.68 and 2.278 of the Treaty referred to in subsection 10° of this section and Articles 1.18 and 1.20 of Protocol No. 1 annexed to that Treaty, but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.

Article 1.22 of the treaty provides for Enhanced Cooperation among groups of Member States.
Article 2.64 deals with a myriad of issues mainly Security, Discrimination, Enhanced Cooperation and the role of National Parliaments.
Article 2.65 deals Policing, border checks and Asylum.
Article 2.66 deals with Judical Cooperation in Civil Matters.
Article 2.67 deals with Judical Cooperation in Criminal Matters.
Article 2.68 deals with Police Cooperation.
Article 2.278 deals with the specifics of Enhanced Cooperation.
This amendment will basically allow Ireland to participate in schemes in these areas, when it so wishes. Basically an Opt-Out.

New Article 29.4.13

13° The State may exercise the option to secure that the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on the European Union and the Treaty on the Functioning of the European Union (formerly known as the Treaty establishing the European Community) shall, in whole or in part, cease to apply to the State, but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.

This is another Opt-out which allows us to opt in when we decide. This Protocol was agreed by the Treaty of Amsterdam.

New Article 29.4.14

14° The State may agree to the decisions, regulations or other acts
under—

  • i Article 1.34(b)(iv),
  • ii Article 1.56 (in so far as it relates to Article 48.7 of the Treaty referred to in subsection 4° of this section),
  • iii Article 2.66 (in so far as it relates to the second subparagraph of Article 65.3 of the Treaty on the Functioning of the European Union),
  • iv Article 2.67 (in so far as it relates to subparagraph (d) of Article 69A.2, the third subparagraph of Article 69B.1 and paragraphs 1 and 4 of Article 69E of the Treaty on the Functioning of the European Union),
  • v Article 2.144(a),
  • vi Article 2.261 (in so far as it relates to the second subparagraph of Article 270a.2 of the Treaty on the Functioning of the European Union), and
  • vii Article 2.278 (in so far as it relates to Article 280H of the Treaty on the Functioning of the European Union),

of the Treaty referred to in subsection 10° of this section, and may also agree to the decision under the second sentence of the second subparagraph of Article 137.2 of the Treaty on the Functioning of the European Union (as amended by Article 2.116(a) of the Treaty 1referred to in the said subsection 10°), but the agreement to any such decision, regulation or act shall be subject to the prior approval of both Houses of the Oireachtas.

More optouts this time the articles are as follows:
Article 1.34(b)(iv) deals with the European Council should decide that the Council should use Qualified Majority Voting (QMV) in areas not specified by the Treaty. Nice to see that this will be sunject to Oireachtas Approval.
Article 1.56 deals with further revisions to the Treatys. Note this treaty is not self amending! “That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.” -Article 1.56.6
Articles 2.66 and 2.67 I have already mentioned and is about Judical Cooperation.
Article 2.144(a) changing the Legislative procedure to “ordinary legislative procedure” by decesion of the European Council.
Article 2.261 refers to changing the budget to QMV.
Article 2.278 again deals with enhanced coperation.
Article 2.116(a) deals with procedures.
This, I think is a good addition to the constitution as it will allow the Both Houses have a say in matters on the running of the EU and future changes to the running of the EU.

New Article 29.4.15

15° The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to—

  • i Article 1.2 of the Treaty referred to in subsection 7° of this section, or
  • ii Article 1.49 of the Treaty referred to in subsection 10° of this section,

where that common defence would include the State.

This is an updating of the old Article 29.4.9 due to the Article in the treaty being changed and mentioned in two treaties now (Nice and Lisbon). This article will ensure that Ireland will not take part in an ‘European Army’ or anything else the no camp would like to say.

Overall I think this is a good amendment to the Constitution. It will give the oireachtas some say in when Ireland will opt in to decisions. It keeps us out of a Common Defence Pact. It clears up the ambiguity of supremecy of EU law by giving it a constitutional backing. Well done to those who drafted the Amendment a good piece of work! Role on the vote!

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Sources:
BUNREACHT NA hÉIREANN – CONSTITUTION OF IRELAND, Department of An Taoiseach
Twenty-eighth Amendment of the Constitution Bill 2008Oireachtas.ie
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007EUR-LEX
Twenty-eighth Amendment of the Constitution of IrelandWikipedia